25 September, 2020

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A Bitter Mockery Of Theoretical Guarantees

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

On June 26th, the International Day in Support of Victims of Torture, a colleague asked me as to why so much criticism was being made of the Sri Lankan Government’s lack of commitment towards eradicating practices of torture in the country.

After all, I was asked, is there not an Action Plan in place which focuses on the same objective specifically, are not constitutional and statutory provisions in place that prohibit torture, do not Sri Lankan courts entertain applications from torture victims and is there not a national Human Rights Commission monitoring state resort to such inhumane treatment?

A simplistic argument

The answers to these questions were quite simple. All the laws and actions plans in theory count for as naught if the Sri Lankan government, as a matter of state practice, encourages and facilitates torture in detention. The fact that such a state practice if not a state policy does actually currently exist has been documented through endless stories of victims whose complaints have not been disproved as false.

 

This is a practice that is evidenced against individuals of all ethnicities and stems from state policy that does not focus on a well functioning criminal justice system but instead uses terror and intimidation as a deliberate tactic of keeping dissent in check. It is this state policy that renders any defence of state actions by pointing to the theoretical guarantees in place as utterly simplistic, wrong and frankly, quite ludicrous.

Indeed, there are several levels at which legal impunity is afforded to perpetrators. Even when Sri Lanka’s Supreme Court was at its heyday in exercising its constitutional duty to protect rights, the very constitutional structure precluded vigorous interventions similar to the Indian Supreme Court. The manner in which even whatever judgments that it delivered were ignored by the political establishment is a separate question meanwhile.

Recommendation of LLRC still hanging in the air

And though it is sought to be made out on occasion that existing provisions of the Penal Code have been used by the prosecutorial and judicial authorities for good effect in combating grave human rights violations such as enforced disappearances and extra judicial executions, this is not demonstrably the case. The Code lacks a specific crime of enforced disappearances that is essential in the context of conflict related abuses. The recommendation of the Lessons Learnt and Reconciliation Commission that such a provision ought to be enacted has still not been given heed to.

In addition, the fact that the Penal Code lacks any provision relating to the concept of command responsibility whereby senior officers may be made liable for their silence in regard to the abuses committed by junior officers under their command is another problematic feature. In certain prosecutions, though the Attorney General has sought to use the provision of culpable inaction to argue that senior officers are found guilty on this basis, this has not been successful.

Limitations of judicial action

These problems in relation to the rights framework however pale into insignificance when compared to the manner in which impunity has been provided for rights abusers by denying the victims even that restricted extent of relief that the law provides.
The replacement of the normal law of the land by extraordinary emergency laws greatly facilitated the phenomenon of enforced disappearances from the 1980′s onwards.

These laws empower the admittance of confessions made to police officers above a particular rank even though the normal strictly prohibits this. Impunity was afforded in practical terms by the lack of effective prosecutions and by the refusal to acknowledge enforced disappearances as a serious problem. Conversely, police officers found responsible by the Supreme Court for the violation of fundamental rights from the 1980′s onwards were not only promoted, but their compensation and costs were paid by the Government.

At the constitutional level, though the Supreme Court developed a sound body of jurisprudence from the late 1980′s, restraining the power of the executive under emergency law, upholding the liberty of the subject and consistently ruling against custodial abuse, these decisions were disregarded by the political and military hierarchy.

Moreover, in recent times, the number of citizens seeking relief from the Court, particularly in relation to infringements of the right to freedom against torture for example, has decreased. Despite some decisions of the Court in cases that were politically controversial and necessitated much publicity, there has been a marked decrease both in the number of petitioners coming before Court and the Court’s positive response to such applications.

Downgrading of constitutional institutions

At the criminal justice level, the performance extremely problematic as referred to earlier. The number of convictions for enforced disappearances, extra judicial executions and torture (even under the special law enacted for this purpose) has been minimal. The pattern has been, in consequence of a particularly grave violation to arrest some persons and then immediately release them on bail.

Thereafter, cases are kept pending for decades with the witnesses and the victims ultimately tiring of the process.
The collective fate that befell two important commissions; the Bribery and Corruption Commission and the National Human Rights Commission evidenced this in no uncertain terms.

The first was set up by a law unanimously passed in Parliament in 1994 (Act, No 19 of 1994); however it has been wholly ineffective, catching only insignificant and lower ranking public officials in its net while stupendous frauds and corrupt acts engaged in by heads of institutions and politicians have been bypassed. During long periods of its existence, it has been almost non-functional due to its infiltration by political elements, the infighting of its officials and efforts by successive governments to use it for their own political ends.

The National Human Rights Commission (NHRC, Act, No 21 of 1996), on the other hand, was established through a law that was significantly flawed in many respects; it allows the body to engage only in conciliation and mediation with the end result that its directions were substantively ignored by not only the police hierarchy but also other government departments and officials; its members are not stipulated to be full time, thus resulting in their giving only part time commitment to the work, Section 31 of the

Act confers powers on “the Minister” to make regulations regarding implementation, including conducting investigations and the Commission is not empowered to approach courts directly as petitioners in instances of grave human rights violations or even refer such questions to the appropriate court. The lack of the NHRC’s authority has been further aggravated in recent times by the disregarding of the 17th Amendment’s provisions as to appointment of its members (when this amendment was in operation) and thereafter the 18th Amendment which effectively put paid to the independence of all the constitutional commissions. The NHRC’s downgrading from category A to category B by the International Coordinating Committee of Human Rights Institutions, is therefore not surprising.

Failure of law enforcement

The fate of the National Police Commission (NPC) to discipline the police and restore the service to some measure of independent functioning is also another good example. Like the NHRC, the NPC was also deliberately dismantled by the political establishment.
The failure of effective law enforcement is a central question in Sri Lanka today.

A number of measures to redress the question of legal impunity, including revision of the prosecutorial and investigative process and the initiation of an effective witness protection system is imperative. Ideally, an office of an Independent Prosecutor with legislative safeguards to ensure independence from government and having independent investigative staff should be established. The investigative/prosecutorial machinery set in place should follow special procedures in relation to investigating and prosecuting complaints by women victims of torture.

Until these steps are taken, the Sri Lankan government’s promises of commitment to rights protections of its people remain only a bitter mockery.

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    WHY NO COMMENTS FOR KISHALI EXCEPT MINE ? Can not hoodwink people as they identify traitors.( Rata vikunagena kana aththo)….

    Part of this comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
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    Hey Dagobert, keep your poisonous comments to yourself. You are the traitor singing for the government under a false name…

    Kishali’s balanced writings are appreciated and the actual fact is that very few can dipute them as they are well argued and highly analytical.

    Only rotters like you can say muck in response but obviously are not capable of tackling the actual issues that she addresses.

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